City of Albany v. Gilbert
| Decision Date | 24 May 1898 |
| Citation | 46 S.W. 157,144 Mo. 224 |
| Parties | City of Albany v. Gilbert et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Gentry Circuit Court. -- Hon C. A. Anthony, Judge.
Affirmed.
Sallee & Goodman for appellants.
(1) Appellants earnestly contend that the board of aldermen of the city of Albany had no authority whatever to appoint commissioners to assess the damages sustained by the appellants by the appropriation and sequestration of this land for street purposes. We contend that under the provisions of section 1815, Revised Statutes 1889, the circuit court of Gentry county or the judge thereof in vacation alone had the authority to appoint such commissioners. This is a proceeding in invitum for the condemnation of private property for public use, and in such cases all the requirements of the law must be strictly complied with. Ells v. Railroad, 51 Mo. 200; Cunningham v. Railroad, 61 Mo. 33; Lind v Clemens, 44 Mo. 540; Leslie v. St. Louis, 44 Mo. 479; State ex rel. v. St. Louis, 67 Mo. 113; Anderson v. Pemberton, 89 Mo. 61; Kansas City v Ford, 99 Mo. 91; Railroad v. Young, 96 Mo. 39. (2) Said section, so far as it purported to confer upon the bo ard of aldermen of a city authority to appoint commissioners to assess the damages to a property owner resulting from the widening of a street, has been repealed and superseded by section 1815, Revised Statutes 1889, which is a later enactment. Section 8 of the act of 1885, declares that the proceedings by it provided for shall be exclusive of all others in the courts of this State for the recovery from any municipal corporation of damages done to private property for public use, within the meaning of section 21, of article II, of the State Constitution. Where two acts are not in express terms repugnant, yet if the later act covers the whole subject of the former, with new provisions, it will operate as a repeal of the former act. U. S. v Tynen, 11 Wall. 88; Norris v. Cooker, 13 How. 429; Pana v. Bowler, 107 U.S. 529. (3) A subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it although it contains no express words to that effect, must on principles of law, as well as in reason and common sense, operate to repeal the former. Bartlett v. King, 12 Mass. 545. (4) Though a subsequent statute be not repugnant in all its provisions to a former, yet if it was clearly intended to prescribe the only rule which should govern, it repeals the former statute. Sutherland, Stat. Cons., sec. 154; State v. Stoll, 17 Wall. 425; Daviess v. Fairbairn, 3 How. 636; U. S. v. Claflin, 97 U.S. 546; Bank v. U.S. 107 U.S. 445; Tracy v. Tuffly, 134 U.S. 206.
Geo. W. Shoemaker, Chas. O. Patton and J. W. Peery for respondent.
(1) Repeals by implication are not favored and will not be decreed, unless it is manifest that the legislature so intended. Every effort will be used to make all acts stand, and if, by any reasonable construction they can be reconciled, the later act will not operate as a repeal of the former. 23 Am. and Eng. Ency. of Law, 489-492 and notes; State v. Macon Co., 41 Mo. 453; State v. Bishop, Ib. 16; State ex rel. v. Draper, 47 Mo. 29; Curtwright v. Crow, 44 Mo.App. 563; Manker v. Fahlhaber, 94 Mo. 430. (2) It is competent for the legislature to provide more than one method of procedure in the exercise of the right of eminent domain; provided these methods differ only as to details, but all conform to the requirements of the Constitution, touching the exercise of such right. Kansas City v. Oil Co., 140 Mo. 468. (3) Section 1589 gives to the board of aldermen of such cities power to "locate and lay out new streets and alleys, and to widen streets and alleys heretofore laid out and to appoint three commissioners to assess the damages," and prescribes a method of procedure which is not here complained of as lacking in any constitutional requirement. Section 1815 was evidently intended to make provision for a great variety of matters not provided for in section 1589. The section says nothing about locating or laying out streets, or widening streets, or taking private property for public use, but, provides that: "In all cases where the proper authorities in any city in this State have graded or regraded, or may hereafter grade or change the grade or lines of any street or alley, or in any way alter or enlarge the same or construct any public improvement, thereby causing damage to private property for public use," etc. Prior to that time, as is said in Householder v. Kansas City, 83 Mo. 488, the owner had no redress for injury and damage to his property caused by a change in the grade of a street, the courts holding that it was damnum absque injuria. Up to that time the legislature had failed to pass any act in pursuance of this constitutional provision, providing a remedy for the property owner in such cases. Section 1815 was evidently intended to supp this defect and omission, as appears from the language, "have graded or regraded, or shall hereafter grade, regrade or change the grade, thereby causing damage without the consent of the owner." Kansas City v. Oil Co., 140 Mo. 458.
This is a proceeding instituted by the plaintiff, a city of the fourth class, under the provisions of section 1589, article V, chapter 30, Revised Statutes 1889, to condemn and appropriate land of the defendants for the purpose of widening a street in that city, and assessing the damages for the taking thereof, in which the defendants appeal from the judgment of the circuit court of Gentry county, upon the verdict of the jury, finding that defendant's tract of land will sustain no damages by reason thereof, and assessing none in their favor.
By section 1589 it is provided that the mayor and board of aldermen of cities of the fourth class shall have power "to pass ordinances to locate and lay out new streets and alleys and to establish their grade, and to widen streets and alleys heretofore laid out, and to appoint three commissioners to assess the damages done to property upon which such street or alley may be located or widened, deducting from such damages the amount of benefit, if any, such street or alley, or the widening or grading thereof may be to the same; and all assessments so made by said commissioner shall be reported as soon as completed to the board of aldermen, who may approve or reject the same, and may, if rejected, appoint new commissioners, who shall proceed as in the first instance; and if approved the land to be used for or occupied by the street or alley may be taken possession of for the purpose of establishing, grading and improving such street or alley, as soon as the amount of damages so assessed shall be tendered to the owner, or if he refuse to accept the same, paid into court for the owner, and all persons injured by such assessment may appeal to the circuit court of the county by filing written exceptions to such report in the office of the clerk of said court, within ten days after the approval of said report by said board of aldermen, and giving written notice of such appeal to said board of aldermen at least fifteen days before the first day of the term to which said appeal is taken; and the circuit court on such appeal shall be possessed of the case, and proceed therewith to final judgment according to law, or may make such order therein as right and justice may require, and may order a new appraisement upon good cause shown to be returned to and acted upon in open court at the same or any subsequent term thereof; but notwithstanding such exception and appeal said city may proceed to lay out, locate, grade, widen or improve such street, and any subsequent proceedings shall only affect the amount of compensation or damages to be allowed."
It is conceded by the appellants that the proceedings which resulted in the verdict and judgment from which they appeal in this case, were conducted in accordance with the requirements of this statute, but it is contended that the whole proceeding is void, and the judgment unauthorized for the reason that these statutory provisions were repealed or superseded by sections 1815 to 1821, inclusive of article I, chapter 31, Revised Statutes 1889, and this is the only question presented in the case. By section 1815 it is provided that, "in all cases where the proper authorities in any city in this State have graded or regraded or may hereafter grade or change the grade or lines of any street or alley, or in any way alter or enlarge the same or construct any public improvement, thereby causing damage to private property for public use within the meaning of section 21, of article II, of the State Constitution, without the consent of the owner of such property, or in case they fail to agree with the owner thereof for the...
To continue reading
Request your trial